1. We are invited in this rule to set aside an order by which the Subordinate Judge has directed the trial of certain issues in a title suit before evidence has been adduced by the parties. For the appreciation of the objection taken to the order of the Subordinate Judge, a brief outline of the circumstances under which the suit has been instituted is essential. One Mathura Nath Chaudhuri, the predecessor of the first two defendants, died on 4th November 1863. Three days before his death he had made a testamentary disposition whereby he authorized his wives, Jogmaya and Sasimukhi, to take sons in adoption. On 15th June 1866 the senior widow adopted the father of defendant 2 and the junior widow took defendant 1 in adoption. It is said and this is one of the matters in controversy between the parties that the last surviving widow of the testator died on 4th December 1900. On 30th November 1912 one Lalit Mohan Chaudhuri, who claimed to be reversionary heir to the estate of Mathura Nath Chaudhuri, executed a conveyance of half share in favour of plaintiff 1, Hari Charan Chaudhuri.

2. On 2nd December 1912 the transferor and transferee jointly instituted the present suit for recovery of possession of the estate of Mathura Nath Chaudhuri, on the assertion that the alleged adoptions by his two widows were void. They joined four persons as defendants, namely, the son adopted by the junior widow, the son of the son adopted by the senior widow, and two transferees of portions of the estate from them. The defendants resisted the claim on various grounds. The questions in controversy between the parties may be gathered from the issues which were settled in the following terms:

1. Have the plaintiffs or has either of them any cause of action for the suit?

2. Has defendant 1 been properly described in the plaint; if not can the suit proceed against him?

3. Has plaintiff 1 acquired any interest in the properties in suit or any one or more of them by conveyance from plaintiff?

4. Is the alleged transfer by plaintiff 2 to plaintiff 1 void, as being without consideration and against the rules of Hindu law and public policy?

5. Is the suit as framed maintainable, the plaintiffs not having prayed for the declaration of the invalidity of the adoptions of the late Rai Surendra Nath Chowdhury and Rai Yatindra Nath Chowdhury as alleged by plaintiffs in answer, to the interrogatories filed by defendants 1 and 2?

6. Is the suit barred by limitation?

7. Is plaintiff 2 the nearest sapinda and heir-at-law of the deceased Rai Mathura Nath Chowdhury, as alleged in the plaint, and entitled to his estate on the death of Jogmaya Chowdhurani in case the title of defendants 1 and 2, by virtue of adoption, fails?

8. Is the authority to adopt given by the late Rai Mathura Nath Chowdhury by his will dated 16th Kartick 1270 B.S, invalid?

9. Whether the adoptions of the late Rai Surendra Nath Chowdhury and of defendant 1, Rai Yatindra Nath Chowdhury, were simultaneous, and if simultaneous, invalid on that ground. Was Rai Surendra Nath Chowdhury adoptioned previous to the adoption of defendant 1?

10. Assuming the said adoptions to have been simultaneous, was there at the time any custom or usage in Bengal validating such adoption? Assuming the existence of such custom or usage, if any is the same valid in law?

11. Is defendant 1 and was the father of defendant 2 entitled to possession of the estate of the late Rai Mathura Nath Chowdhury as persons designated to succeed him as heirs or legal representatives, as alleged in para. 7 of the written; statement of defendant 1? Are the allegations made in the said para. 7 sufficient to raise the contention?.

12. Are the plaintiffs estopped from questioning the legal status of defendants 1 and 2 based on adoption, or their right to possession of the estate left by Rai Mathura Nath Chowdhury and the derivative rights of defendants 3 and 4, on allegations made in that behalf in the written statement of the defendants and in the statements made in answer to the interrogatories by the plaintiffs?

13. Have the defendants acquired absolute and indefeasible rights to properties in suit by adverse possession irrespective of adoption?

14. Which of the properties, if any mentioned in the schedules to the plaint form part of the estate of Rai Mathura Nath Chowdhury? Are the plaintiffs or either of them entitled to possession thereof?

15. Are the properties mentioned in Schs. B and G of the plaint and Sch. (…) of the written statement unconnected with the estate of Rai Mathura Nath Chowdhury and is their claim thereto, or of any of them, barred by limitation?

16. Were the properties mentioned in Sch. B of the plaint the stridhan properties of Shama Sundari Chowdhurani, and were they validly disposed of by her?

17. Assuming the plaintiffs or either of them to be entitled to possession of any property covered by the suit, on what terms, if any, are they, or either of them, entitled to do so?

18. Have the defendants or any of them spent any money for the improvement of the properties in suit and if so, what amount?

19. Are the plaintiffs entitled to any mesne profits; and if so, for what period and for what amount?

20. Was the transfer made by defendant 1 to defendants 3 and 4 for the purpose of paying off debts of the estate of Rai Mathura Nath Chowdhury valid? Did defendant 1 and the father of defendant 2 at the time for such transfer represent the estate of Rai Mathura Nath Chowdhury? If so, what is the legal effect of such transfer?

21. Are defendants 3 and 4, or either of them, bona fide purchasers for value? If so, can the plaintiffs avoid the sale to them; at all events except on terms, and in the latter event, on what terms?

22. To what relief, if any, are the plaintiffs, or either of them, entitled?

3. On the application of the plaintiffs, commissions were issued for examination of two of their witnesses, one of them the reversioner claimant himself. After the examination of these witnesses plaintiff 1, the transferee from the reversioner, applied to the Subordinate Judge that issues 1, 2 and 5-13 might be decided without evidence. The defendants protested against the adoption of this course, as, according to their contention, some at any rate of these issues raised questions of fact or mixed questions of fact and law. The Subordinate Judge overruled the objection, and on 10th February 1914 directed that the 11 issues specified above except the first part of issue 10 be tried as issues of law without reception of evidence. On 16th February plaintiff 2 unconditionally withdrew from the suit and his name was struck off from the category of plaintiffs. Thereafter on 28th February, on the application of plaintiff, 1 the original plaintiff 2 was added as a party defendant, but the recitals in the plaint were not suitably amended. On the same day the defendants applied to the Subordinate Judge to review his order of the 10th February, and prayed that, if any issues were to be heard in advance of the others, issues 3 and 4 which raised the question of the validity of the purchase by the champertor-plaintiff from the claimant reversioner, might be so tried under the altered circumstances of the case. On 9th March 1914 the Subordinate Judge refused to recall or modify in any way his previous order. We are now asked to set aside the orders of the 10th February and 9th March as erroneous and unjust.

4. It is not disputed that under R. 2, O. 14, where issues both of law and of fact arise in the same suit and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. This rule has reference to the stage of settlement of issues, and has no direct application to the present case. Nor does O. 15, R. 3(1), which contains a similar provision for the disposal of the suit at the first hearing, apply to this case. Here the plaintiff made his application long after the settlement of issues and expiry of the date fixed for first hearing. These provisions are analogous to R. 3, O. 25, and R. 2, O. 34, of the rules of the Supreme Court, with reference to which it was said by Mathew, J., in Tattersall v. National Steamship Co. Ltd. . [1884] W.N 32., that it is very desirable that questions of law, the decision of which may make unnecessary the trial of any question of fact, should be raised and decided in advance of issues of fact. In Corporation of Preston v. Fullwood Local Board . [1886] 2 T.L.R 60., it was ruled that a question of law, which could not be clearly separated from the other questions in the action or on which evidence might be required, might be tried first at the trial upon such admissions as the parties might make or upon such evidence as might be necessary. To the same effect is the decision in London, Chatham and Dover Ry. Co. v. South E. Ry. Co. . [1885] 53 L.T 109. where Chitty, J., observed that the mere fact that there might be many appeals would not stand in the way of an order for trial of questions of law first, if that would be convenient to the parties and save them expense. On the other hand the Court of appeal in Robinson v. Fenner . [1912] 106 L.T 722. reversed the order of Channel, J., Robinson v. Fenner . [1912] 106 L.T 542., and directed that the action should proceed to trial in the ordinary way and that all questions of law and fact be dealt with at the trial. In the Courts of this country it has frequently been pointed out that the trial of a case piecemeal may lead to protracted litigation and serious inconvenience and involve the parties in heavy costs if the case is taken repeatedly on appeal to a superior tribunal Mahipal Singh v. Lalji Singh . [1912] 16 I.C 705..

5. As Lord Justice Turner said in Tarakant Bannerjee v. Puddomoney Dossee . [1863-66] 10 M.I.A 476, it is much to be desired that in appealable cases the Courts below should, as far as may be practicable, pronounce their opinion on all the important points, because the Courts below, by forbearing from deciding on all the issues joined, not infrequently rendered necessary a remand in a case which might otherwise be finally decided on appeal; this is certainly a serious evil to the parties litigant, as it may involve the expense of a second appeal as well as that of another hearing below: see also Devarakonda Narasamma v. Devarakonda Kannaya . [1882] 4 Mad. 134.; Muhammad Mumtaz Ahmad v. Zubaida Jan . [1889] 11 All. 460; Shib Charan Lal…(Defendant); v. Raghu Nath…(Plaintiff).* . [1895] 17 All. 174; Baldeo Singh v. Dharam Kunwar . [1904] 26 All. 234; Wasantrao Madhorao v. Anandrao Ganpatrao . [1904] 6 Bom. L.R 925. and Ismail Khan Mahamed v. Hari Charan Pal . [1905] 9 C.W.N 60.. Tested from the point of view of these principles, the order of the Subordinate Judge is clearly unsustainable. The fundamental defect of his decision is that he has treated issues which really raise mixed questions of fact and law, as involving only pure questions of law. For instance, issue 7, which raises the question of limitation, is not an issue of pure law, because the defendants 3 and 4 who are strangers to the family, do not admit the time of death of the last surviving widow of Mathura Nath Chowdhury. Again, issue 7 involves a question of fact, namely whether the original plaintiff 2 was the nearest reversioner when the succession opened out on the death of the last surviving widow. Issue 1 also required modification in the events which had happened; but the gravest objection to the order of the Subordinate Judge arises in connexion with the issue 10, which raises the question of the existence and validity of a custom of simultaneous adoptions. The Subordinate Judge has assumed that the question of the validity of the custom might be determined before the elements which constitute the custom had been ascertained from the evidence. In our opinion, this mode of trial is not calculated to secure the ends of justice.

6. There has been discussion at the Bar as to the validity of such a custom, and reference has been made to the observations in Monemothonath Day v. Onathnath Dey . [1865] 2 Ind. Jur. n.s 22; Akhoy Chunder Bagchi v. Kalapahar Haji . [1886] 12 Cal. 406; Venkata Narasimha Appa Row v. Parthasarathy Appa Row . [1914] 23 I.C 166. It is plain that the Court should not consider the question of validity of the custom till the custom itself has been established with precision. But the order of the Subordinate Judge is open to objection not merely on the ground that he has treated mixed questions of fact and law as pure questions of law; it is open to criticism also on the ground that if any issues are to be tried in advance of others, the third and fourth, which go to the root of the title of plaintiff 1, should obviously have been given precedence. Those issues raised the question whether on the principle recognized by the Judicial Committee in Chedambara Chetty v. Ranja Krishna Muhu Vira Puahanja Naikar . [1873-74] 1 I.A 241 and Basant Singh v. Mahabir Pershad . [1913] 19 I.C 340 and applied by this Court in Gossain Ramdhan Puri v. Gossain Dalmir Puri . [1909] 2 I.C 385., plaintiff 1, who is now the sole plaintiff, is competent to maintain the suit. Upon a consideration of the entire order of the Subordinate Judge, we are clearly of opinion that, if maintained, it will not secure a proper and speedy trial of this heavy litigation, which involves property worth more than thirty-five lakhs of rupees. At the same time, we are of opinion that the issues may be divided broadly into two groups, namely 1-13 and 14-22. The first group of issues involves questions of the rights of the parties to the estate of Mathura Nath Chowdhury; the second group raises questions as to the extent of that estate, the conditions, if any subject to which the plaintiff may recover that estate if his title is at all established and other analogous matters. It is clear that the second group of issues will not require consideration if the title of the plaintiff is not established.

7. In these circumstances, as we intimated at the close of the hearing, the rule must be made absolute and the order of the Court below discharged. We direct the Subordinate Judge to take up issues 1 to 13 for trial; the parties will Recalled upon to adduce all relevant evidence bearing upon the subject-matter of these issues. If these issues are ultimately decided in favour of the plaintiff, the Subordinate Judge will take up for disposal the remaining issues. The costs of this rule will be costs in the suit. We assess the hearing fee in this Court at five gold mohurs.

8. We may add that it was faintly suggested on behalf of the opposite party that this Court is not competent to grant relief, even if satisfied that the order of the Subordinate Judge is erroneous and unjust. We are not prepared to take such a restricted view of the jurisdiction of this Court to grant relief, in the exercise either of our revisional powers or the power of superintendence vested in this Court by the High Courts Act, 1861. Instances are by no mews rare where, in very exceptional cases, this Court has interfered and set matters right by the reversal of interlocutory orders: Gobind Mohan Doss v. Kunja Behari Doss . [1909] 4 I.C 364.; Amjad Ali v. Ali Hussain . [1910] 6 I.C 574.; Khirade Chunder v. Saroda Prosad . [1910] 7 I.C 436.; Charu Chandra Dutt v. Sarat Chandra Singh . [1910] 8 I.C 87.; British India Steam Navigation Co. v. Secy. of State . [1910] 8 I.C 107 and Umatul Mehdi v. Kulsum . [1908] 35 Cal. 120. No doubt the facts of each individual case must be the determining factor; in the present case, for the reasons already assigned, we are of opinion that in its special circumstances, the order of the Subordinate Judge should not be allowed to stand.

V.B/R.K

9. Rule made absolute.